dissenting:
On July 16, 1984, plaintiff E. Stanley Morris, subject to a 72-hour involuntary commitment for alcohol related mental illness, while handcuffed, shackled and feigning sleep in the back seat of Sussex County Constable Frank Blake’s car, surprised Blake by undoing his seatbelt, unlocking the door, and hurling himself out onto the highway while the car was travelling at approximately forty miles per hour. Not surprisingly, Morris was seriously injured. Following trial, a jury found defendant-appellant Sussex County liable to Morris in the amount of $100,000 for the negligence of its agent in allowing Morris to attempt suicide. In affirming this bizarre result, the majority makes at least two fundamental errors of statutory construction.
First, the majority unnecessarily confuses the interaction of 10 Del. C. §§ 4011 and 4012, and relies upon Sadler v. New Castle County, Del.Supr., 565 A.2d 917 (1989), as its authority for doing so. Thus, the majority states, “Implicit in Sadler is the principle that use of defective or inappropriate machinery or equipment may divest a governmental entity of immunity under Section 4012, irrespective of Section 4011(b)(3).” Were such a proposition to be truly implicit in Sadler, and I think it is not, Sadler would be in direct contradiction to the unequivocal language of the statute. As the majority notes and then attempts to distinguish (unsuccessfully in my view, through the use of self-fulfililng definitions), the provisions of section 4011(b) grant immunity “notwithstanding ” the specific exceptions of section 4012. Accordingly, where a damage claim arises from the performance or failure to perform a discretionary function, a governmental entity is immune, regardless of whether any of the exceptions enumerated in section 4012 are satisfied. 10 Del.C. § 4011(b). Here, a holding that Blake’s negligent acts were discretionary would mandate immunity, regardless of whether those acts involved a motor vehicle under section 4012(1).
Second, rather than give effect to the plain meaning of the crucial statutory term, “discretionary,” the majority resuscitates the common law that this statute was specifically intended to abrogate. Fiat Motors of N. Am., Inc. v. Mayor and Council of Wilmington, Del.Supr., 498 A.2d 1062, 1064-67 (1985) (“It is the Court’s duty to interpret the Act as it is written, rather than perpetuate theories or views which may previously have been expressed by the Court.”) Thus the majority conjures the term “ministerial” (a term nowhere present in the statute) as an antonym to discretionary, and then finds all Blake’s acts to be ministerial in nature.1 According to the opaque portion of the Restatement commentary adopted by the majority, ministerial acts are those where “the matter for which judgment is required has little bearing of importance upon the validity of the act....” However, while holding that Blake’s acts satisfied this definition, the majority fails to explain how the matter for *1364which judgment was required of the rescue workers in Sadler, i.e., how to transport Sadler, had any greater bearing of importance upon the validity of their acts. Moreover, I find the Restatement definition to have it exactly backwards. The essence of discretion is choice, and the right to be wrong; that is, where the authority to act, and the validity of the act, are independent of the correctness of the chosen manner of execution of the act. Common sense would therefore indicate that it is discretionary acts for which an actor’s authority to choose is not dependent upon the particular option he selects.
I find a later sentence in the Restatement to be more enlightening: “Ministerial acts are those done by officers and employees who are required to carry out the orders of others or to administer the law with little choice as to when, where, how or under what circumstances their acts are to be done.” Restatement (Second) of Torts, § 895D, comment ■ h. (emphasis added). The undisputed record establishes that Blake was directed only to safely transport Morris to his destination; the manner and method of performing this task, in particular, the securing of Morris, was left entirely to Blake’s discretion. Even were one to concede that Blake’s decision regarding how to equip his vehicle for the transportation of patients such as Morris was somehow not discretionary (despite the fact that the County had no guidelines limiting Blake’s discretion in this regard), surely Blake’s fatal decision to rehandcuff Morris in the front was discretionary. Acting within his authority, Blake granted Morris’ request to be handcuffed with his hands in front, and not behind his back, so that Morris could smoke a cigarette. Blake’s undisputed testimony was that it was his experience that allowing those passengers to smoke who so requested tended to calm them down. Is this not precisely the kind of act which, no matter how negligent, we would commonly call “discretionary”? Absent this decision by Blake, Morris would not have been able to injure himself. With no particularized findings by the jury as to which of Blake’s acts negligently caused Morris’ injuries, a holding that any allegedly negligent act was discretionary and therefore immune must result in reversal.
Thus, despite the fact that Blake’s negligent actions occurred in the performance of duties undeniably left to his discretion, the majority holds that the matters over which Blake exercised his discretion required so little in the way of judgment as to be classified as “ministerial” and therefore not “discretionary.”2 I would hold that Blake’s acts in selecting both the manner and method of transporting and securing Morris were inseparable and discretionary, and therefore subject to immunity under the County and Municipal Tort Claims statute, 10 Del. C. § 4010, et seq. Sadler v. New Castle County, Del.Supr., 565 A.2d 917, 922 (1989). Therefore, I would reverse this “deep pocket” judgment. I respectfully dissent.
. I find the proposed dichotomy of the concurrence, i.e., between policy-making and operational acts, to the extent that it is more than unhelpful semantics, to be contradictory to legislative intent. Fiat Motors, 498 A.2d at 1067. The preamble to the County and Municipal Tort Claims Act, as set out in full in an appendix to Fiat Motors, makes clear the legislative intent to protect local governmental services and to extend immunity beyond merely those activities for which insurance is unavailable. Cf. City of Wilmington v. Spencer, Del.Supr., 391 A.2d 199 (1978) (opinion issued less than one year before legislature expressly enacted Tort Claims Act to reverse recent court decisions). I would therefore not overrule Sadler.
. I find the majority's holding regarding the level of judgment entailed by Blake's acts to be particularly ironic in light of the fact that Morris had to resort to expert testimony to establish in hindsight that Blake's judgment was negligent.